abstract. The environmental movement in the 1970s secured many
landmark victories, including the passage of important legislation and the
establishment of the EPA. However, these activists, while identifying critical
environmental problems, failed fully to consider their cause. In particular,
the environmental movement ignored the longstanding legal framework that
historically secured the transfer of land away from Tribal Nations on the basis
that they refused to exploit it. This Essay examines three cases, TVA v. Hill, Sequoyah v. TVA, and Standing
Rock Sioux Tribe v. United States Army Corps of Engineers, all three of
which exemplify the consequences of a federal environmental framework that
fails to recognize the inherent right of Tribal Nations to protect their lands.
The protests at Standing Rock represent the latest iteration of longstanding
tribal dissent against an environmental law framework that has long overlooked
their interests. This Essay ultimately argues that the environmental movement’s
failure to advocate for the restoration of tribal sovereignty under federal law
has left us all with a legal framework incapable of addressing climate change.

History
connects the dots of our identity, and our identity was all but obliterated.
Our land was taken, our language was forbidden. Our stories, our history, were
almost forgotten. What land, language, and identity remains is derived from our
cultural and historic sites . . . . Sites of cultural and
historic significance are important to us because they are a spiritual
connection to our ancestors. Even if we do not have access to all such sites,
their existence perpetuates the connection. When such a site is destroyed, the
connection is lost.

-Chairman
Dave Archambault, II, Standing Rock Sioux Tribe.

Introduction

Beginning in August 2016, thousands traveled to the Standing
Rock Sioux Tribe (SRST) to stand in solidarity with the Tribe and voice their
dissent against a pipeline that Dakota Access, LLC was seeking to construct
across and under the Missouri River and the ancestral lands of SRST. The media
described the movement as “environmental” with a focus on stopping “climate
change,” however, these descriptors alone do not encompass all that inspired
individuals to travel to, or all that happened at, Standing Rock.1 As Chairman Archambault has
explained on behalf of his Nation, SRST’s motivation to protect their lands and
water comes from their understanding that the land contains “cultural and
historic sites” that constitute “a spiritual connection to [their] ancestors.”2 It is an understanding that
hardly resonates in a legal framework designed initially to engender—and now
protect—non-Native property interests in indigenous lands.

Now, well over one year since SRST first filed its complaint
challenging the United States Army Corps of Engineers’ (Army Corps) decision to
grant the environmental permits the pipeline needs to cross the Missouri River,
SRST’s claims remain buried in a mountain of procedural motions, substantive
motions for summary judgment, cross claims, interpleaders, and debates over the
Army Corps’ administrative record. Standing Rock has lost every motion for
emergency relief that it has sought.3 Oil now flows through a
pipeline that not only creates a threat to the drinking water of millions
downstream, but has also destroyed burials and desecrated sacred sites.
Environmental law—the statutory, regulatory framework created in the 1970s in
response to the birth of the modern day environmental movement—has failed the
Tribe.

Dissent in the 1970s created the modern environmental law
framework environmental lawyers and activists now employ.4 Today, however, the dissent
at Standing Rock demonstrates that the environmental law we created in the
1970s no longer serves us, or perhaps it never truly did. The law currently on
the books also cannot, and will not, solve the most pressing environmental
crisis we have ever faced: climate change. These failures are linked: the
failure of environmental law to effectively address climate change is, in large
part, the result of the environmental movement’s failure to advocate for the
restoration of tribal sovereignty under federal law.

At first glance, federal environmental and Indian law may
seem completely disconnected and unrelated. That disjuncture, however, is
precisely the problem. In the 1970s, when statutory federal environmental law
was created, environmental lawyers advocated for the establishment of a legal
framework that valued the preservation and protection of land, water, and air,
with little to no recognition of the fact that the laws of many Tribal Nations
had long valued the protection and preservation of the Earth—and therefore
refused to commercially exploit it. In fact, tribal failure to exploit land
provided the Supreme Court with a justification for stripping Tribal Nations of
their land titles almost two hundred years ago in Johnson v. M’Intosh.5
This case led to the creation of the “Doctrine of Discovery,” which redefined
indigenous land as an object to be conquered and exploited—not preserved, protected,
or maintained for future generations.6 Following the Court’s
decision in Johnson, the failure to
commercially exploit land became the legal basis for transferring title from
those who would not to those who would. The current crisis at Standing Rock,
therefore, is the direct result of a legal framework that legitimized the
conquest and colonization of Native lands. The framework, when initially
created in 1823, faced little if any dissent. The same was true in the 1970s,
when the contemporary environmental law was crafted with no expressions of
concern about the Supreme Court’s Doctrine of Discovery. The dissent of the
general (including non-Indian) public at Standing Rock this past year,
therefore, presents an unprecedented opportunity to change a legal framework
that has never been fully opposed.

The environmental movement will never fully succeed in
creating a legal framework that recognizes the inherent value of preserving and
protecting our lands, water, and air until the movement advocates for the
restoration of the indigenous legal framework that historically valued the
environment. The time has come to envision a different framework for
environmental law. The Standing Rock movement calls on all lawyers who label
themselves “environmentalists” to advocate for the eradication of the Doctrine
of Discovery under Johnson v. M’Intosh and
the restoration of tribal sovereignty under federal law. The laws and
traditions of Tribal Nations that demand a balance with Mother Earth should no
longer serve as a basis for stripping them of their inherent right to
self-govern, and instead should serve to guide American lawmakers in their
efforts to address the crisis of climate change.

Part I of this Essay considers the manner in which the
Supreme Court created a legal framework that predicates land ownership on
commercial exploitation of the land—a value that inevitably conflicts with the
environmental movement’s goal to preserve and protect. Part II explores the
genesis of the contemporary federal environmental regulatory framework in the
1970s, emphasizing the absence of any advocacy for the restoration of tribal
sovereignty. Part III will examine two case studies, TVA v. Hill and Sequoyahv. TVA, both of which exemplify the
consequences of a federal environmental framework that fails to recognize the
inherent right of Tribal Nations to protect the lands they have long lived on.
Part IV shows how these tensions came to be exposed at Standing Rock in Standing Rock Sioux Tribe v. United States
Army Corps of Engineers.

I. johnson v. m’intosh and the creation of
the doctrine of discovery

In Johnson v. M’Intosh,
the Supreme Court declared that Tribal Nations could no longer claim legal
title to their own lands as their “rights to complete sovereignty, as
independent nations, [were] necessarily diminished.”7 To reach the conclusion that
Tribal Nations—such as the Standing Rock Sioux Tribe—could not claim legal
title to their own lands, the Johnson Court
reasoned that “[c]onquest gives a title [to the Conqueror] which the Courts of
the conqueror cannot deny,” a claim now known as the Doctrine of Discovery.8 According to the Court in Johnson, Natives could not be left “in
possession of their country” because they were “fierce savages[] whose
occupation was war, and whose subsistence was drawn chiefly from the forest.”9 As a result, “[t]o leave
them in possession of their country, was to leave the country a
wilderness”—that is, land that is not commercially exploited or colonially
conquered in the name of what was then viewed to be American progress.10

Based on this rationale, the Court characterized Natives as
“heathens” who could no longer claim title after “Christian
people . . . [had] made a [] discovery” of their lands.11 The Johnson Court, therefore, further predicated its holding on the
fact that citizens of Tribal Nations were not practitioners of the Christian
faith. While seemingly tangential and unnecessary to the Court’s holding that
failing to exploit land and leaving “the country a wilderness” justified the
stripping of legal title, the additive consideration of one’s Christianity—or
absence thereof—further explains the refusal of federal courts today to protect
or preserve lands that contain the sacred sites or burials of individuals who
do not practice Christianity.12

Since time immemorial, the religious and spiritual beliefs of
many Tribal Nations have commanded their citizens to preserve and protect the
lands that contain the burials and sacred sites of their ancestors. These
values, laws, and beliefs were eclipsed by the Supreme Court’s decision in Johnson, and to this date, have never
been fully restored.13
According to the books and in practice, Johnson
v. M’Intosh remains good law; it has never been overturned.

II. dissent in the
1970s and the birth of “environmental law”

Dissent, in the 1970s, created environmental law. As lawyers,
we are taught in law school that law is derived from precedent, authority, and
the shared communal values of our nation, state, or community. In reality, the
law we practice today is often derived from dissent. For instance, Justice
Harlan’s dissent in Plessy v. Ferguson14 subsequently transformed
into the foundational authority for the majority opinion in Brown v. Board of Education.15 And Justice Blackmun’s
dissent in Bowers v. Hardwick16 paved the way for the
reversal of Bowers seventeen years
later in Lawrence v. Texas.17

Dissent, however, is not unique to Supreme Court Justices.
The dissent of individual American citizens—whether through art, litigation, or
the exercise of free speech in the streets—can result in changes to the laws
the “majority” has put in place. The environmental movement in the 1970s
constitutes a prime example. Before the 1970s, “environmental law” did not
exist as a federal regulatory framework. Although individual citizens could
file claims against polluters predicated on common law theories articulated by
the courts themselves, no federal statute provided a “right” to file suit to
protect the environment in general, or beyond one’s own private property.
Indeed, prior to the 1970s, “environmental” issues were litigated almost
exclusively in state courts.18
But as commercial exploitation of the environment expanded and grew, it became
clear that pollution and contamination issues crossed state—even
international—borders, necessitating a comprehensive federal regulatory
framework.19

In response to this absence of corporate and government
accountability for increasing widespread pollution in the United States, on
April 22, 1970 (the first “Earth Day”), over twenty million Americans marched
to demand the federal government take action to preserve and protect the
environment from the growing number of threats brought on by the continued
expansion of industrialization and commodification of lands and the Nation’s
natural resources.20
Instead of waiting for a Supreme Court Justice’s dissent to become law,
American citizens exercised their constitutional right to express their dissent
and advocate for the creation of the laws necessary to protect them, their
communities, and their homes.

Congress responded to such demonstrations and created what we
now know to be federal environmental law. By the end of 1970, Congress had
passed the National Environmental Policy Act (NEPA)21 and the Clean Air Act
(CAA),22 and President Nixon had
created the Environmental Protection Agency. In 1973, Congress passed the
Endangered Species Act.23
In 1972 and 1973 came the Clean Water Act (CWA),24 the Noise Control Act,25 and the Marine, Protection,
Research and Sanctuaries Act.26
By 1977, Congress had added the Toxic Substances Control Act27 and the Surface Mining
Control and Reclamation Act.28
As Oliver Houck, one of the architects of the 1970s environmental law movement,
has noted, the birth of environmental law as a creature of federal statute was
“[c]ompletely unanticipated,” as “it came from a public awareness so
spontaneous and deep that within a few short years, it had produced over a
dozen major public welfare laws and more than twenty new federal programs.”29

Thanks to the dissent of the 1970s and statutory provisions
like the CWA and CAA, members of the public can file “citizen suits”—exercising
a statutorily created right to bring actions against the federal government for
failing to regulate and prevent pollution.30 From 1970 to 2006,
“[m]embers of the public filed more than 2,500 citizen suits under these
[environmental law] statutes . . . challenging government
actions, inactions, and other compliance.”31 As the D.C. Circuit Court
of Appeals noted in 1971:

These cases are only the beginning of what promises to
become a flood of new litigation—litigation seeking judicial assistance in
protecting our natural environment. Several recently enacted statutes attest to
the commitment of the Government to control, at long last, the destructive
engines of material ‘progress.’32

“Citizen suits” constitute a curious creature
of dissent, as they deputize private citizens to act in the same capacity as an
attorney general bringing suit for harms suffered by the public at large. In
this regard, they create a vehicle for dissent within a system, while seemingly
acknowledging that they may result in change to the system itself. Perhaps this
is why these suits were met with significant opposition. Indeed, conservative
members of the federal bench bemoaned that citizen suits constituted an
“attack” on the “American economic system.”33

In contrast, the bipartisan Congress that passed the
environmental statutes—and those who participated in the Earth Day grassroots
movement—believed the shift in public perception, now accompanied with new
laws, would succeed in preserving “the environment” for future generations of
Americans.34 Unfortunately, they were
wrong. The environmental advocacy of the 1970s did not include a critique of Johnson v. M’Intosh. The movement
neglected to address the then-existing legal framework that justified the
colonial conquest of what now constitutes “American” lands on the basis that
Tribal Nations had failed to commercially exploit them. As a result, the
environmental law of the 1970s superficially addressed the harmful effects of
rapidly increasing industrialization, but did nothing to acknowledge or remedy
the fundamental principle espoused in the Court’s Johnson v. M’Intosh framework: namely, that land is not to be
respected or preserved, but rather conquered and used commercially for profit.
As a result of this governing principle, the contemporary environmental
movement now faces significant challenges in effectuating the goals of the
statutes passed in the 1970s.

III. the contemporary
disconnect of environmental law

The failure of the environmental movement to address Johnson v. M’Intosh’s commodification
and colonization of land—and concomitant denial of tribal sovereignty—is
apparent in the juxtaposition of one of the movement’s first huge victories, Tennessee Valley Authority v. Hill,35 with one of its
earliest—and simultaneous—failures, Sequoyah
v. Tennessee Valley Authority.36 When viewed as case
studies, these two examples of dissent within the context of environmental law
reveal both the strength of the statutes we now have on the books as well as
the inherent weakness of the 1970s environmental law framework. This framework
fails to address the legal principles that are complicit in the environmental
destruction of the allegedly racially inferior and “uncivilized” Tribal Nations
who have long served as stewards of the lands that environmentalists now seek
to protect.

Tennessee Valley
Authority v. Hill37has been celebrated as the first major
victory of the 1970s environmental movement. In 1967, the Tennessee Valley
Authority (TVA) began construction of a dam at the mouth of the Little
Tennessee River.38 The dam threatened to
devastate numerous sensitive ecosystems, as well as prime Tennessee farmland.39 In particular,
environmentalists expressed alarm that the proposed dam would eradicate an
endangered species of the snail darter, the Percina
(Imostoma) tanasi—a “three-inch tannish-colored fish, whose numbers [were]
estimated to be in the range of 10,000 to 15,000.”40 Thus, to save this species
of snail darter, environmental groups and others brought action under
Endangered Species Act of 1973 (ESA) to enjoin TVA from completing the dam and
impounding the remaining sections of the Little Tennessee River.41

To the surprise of many, the Supreme Court began its analysis
with the premise “that operation of the Tellico Dam will either eradicate the
known population of snail darters or destroy their critical habitat,”42 concluding that the ESA
required it to permanently enjoin the operation of the dam.43 As Houck later commented
regarding the response at large to this unprecedented victory: “The press went
wild—darter stops dam.”44 The Supreme Court did note that the
lands the TVA sought to condemn “include the Cherokee towns of Echota and
Tennase, the former being the sacred capital of the Cherokee Nation as early as
the sixteenth century and the latter providing the linguistic basis from which
the State of Tennessee derives its name.”45 This, however, constituted
the extent of the Court’s consideration of the lawful interest Cherokee Nation
(or other Cherokee Tribes such as the Eastern Band of Cherokee Indians) may
have had in the lands the TVA sought to condemn. Of course, Johnson v. M’Intosh made clear that such
considerations have no place in the Court’s analysis, and the passage of the
ESA did nothing to alter this.

In contrast to TVA v.
Hill, the Eastern Band of Cherokee Indians (the “EBCI” or “Band”)—a
sovereign Cherokee nation living just to the southeast on ancestral Cherokee
lands—also brought a concurrent lawsuit to prevent the operation of the dam on
the basis that the dam would destroy Cherokee “burial grounds [that hold]
religious significance to the Cherokee people.”46 The Tribe, however, lost.47 The EBCI claimed that the
National Historic Preservation Act, the American Indian Religious Freedom Act,
and the U.S. Constitution provided the Band with a right to protect its sacred,
religious and burial sites.48
During the course of the trial, Cherokee elders came forward to testify
regarding the historic Cherokee settlements and burials that the construction
of the Tellico dam would destroy.49
One elder in particular, Mr. Richard Crowe, explained that “Chota is one of the
sacred Cherokee places, spoken of by [my] family as the birthplace of the
Cherokee.”50 Indeed, it “was our
connection with the Great Spirit.”51 The land continued to have
a presence in the life of the Tribe; Crowe “had been going to the land at
Tellico for more than 30 years[,] . . . he took his
children there when they were young.”52 Notwithstanding the
testimony of Cherokee elders and the fact that the dam would destroy Cherokee
burials and sacred sites, the District Court dismissed the EBCI’s claims, and
the Sixth Circuit affirmed the District Court’s dismissal.53 The Supreme Court then
denied certiorari.54

In TVA v. Hill, the
Court did not inquire whether the environmentalists attempting to protect the
snail darter owned, or held title, to the lands (or in this case, waters) where
the snail darter lived. Indeed, such analysis is irrelevant under the ESA. In
contrast, the District Court held (and the Sixth Circuit affirmed) that because
“[t]he flooding of the Little Tennessee will prevent everyone, not just
plaintiffs from having access to the land in question[,]” and further, because
EBCI had no “legal property interest in the land in question,” the Band could
not sustain its free exercise of religion claim under the First Amendment.55

How does one square the EBCI’s loss with the environmental
group’s simultaneous victory? Once again, the Johnson Court’s edict that Tribal Nations cannot claim legal title
to their lands explains the disparate outcomes in these two cases. The
environmental movement of the 1970s successfully created laws that blocked the
construction of a dam to save the snail darter species, but failed to achieve
the restoration of laws to allow Tribal Nations to protect the lands they have
lived on for centuries. As Houck later explained, “[n]o story better reflects
the hopes and flaws of environmental policy in the United States” than the
victory of the environmentalists in TVA
v. Hill and the concomitant loss of the Eastern Band in Sequoyah v. TVA.56

IV. today’s dissent at standing rock

The failure of environmental law to provide an effective
mechanism by which the Standing Rock Sioux Tribe may protect the burials and
sacred sites in the path of the proposed Dakota Access pipeline illustrates
that, in the intervening years since TVA
v. Hill, we have come no closer to a legal solution.

On July 27, 2016, the Standing Rock Sioux Tribe (“Standing
Rock”) filed a complaint against the U.S. Army Corps of Engineers in the United
States District Court for the District of Columbia.57 In Standing Rock Sioux Tribe v. Army Corps of Engineers, the Tribe
challenged the Army Corps’ decision to issue Dakota Access the permits
necessary under federal law to construct and operate a 1,100 mile pipeline
that, at the time, was proposed to (and now does) carry over a half-million
barrels of Bakken crude oil to Illinois and across four states.58 The Tribe brought its
claims under several “environmental law” statutes, including the National
Environmental Policy Act (NEPA)59
and the National Historic Preservation Act (NHPA).60 These statutes, however,
have failed to achieve an outcome that would require the United States federal
government and the private Dakota Access pipeline company to respect the
inherent sovereign right of Standing Rock to protect the lands that encompass
their sacred sites and the graves of their relatives.

In particular, the events that transpired over the 2016 Labor
Day weekend exemplify the failures of our contemporary federal environmental
regulatory framework. On September 2, 2016, at a time when Dakota Access had
not yet built the pipeline up to the Missouri River, Standing Rock’s former
Tribal Historic Preservation Officer Tim Mentz61 filed a declaration stating
that he “received an unsolicited phone call” from an individual who owned
roughly 8,000 acres north just one mile of the Standing Rock reservation and
directly within the proposed construction path of the pipeline along the
Missouri River at Lake Oahe.62

Mentz’s declaration further relates that the individual who
had called the Tribe “stated that he was concerned about the potential
destruction of culturally important sites and hoped to facilitate efforts to
mitigate or avoid harm to important sites from the pipeline,” so he invited
Mentz to conduct a cultural survey on his land, so long as Mentz did not enter
the pipeline corridor itself.63
Mentz described his August 26, 2016, survey on the individual’s land as
follows:

At 2:30pm on that day, I followed [his] instructions
to an area adjacent to the pipeline corridor to the west of Highway 1806. The
pipeline right-of-way was clearly visible . . . . We
immediately observed a number of stone features in the pipeline route plainly
visible from the edge of the corridor. I am very confident that this site,
located within the center of the corridor, includes burials because the site
contained rock cairns which are commonly used to mark burials. Two cairns were
plainly visible and a possible third one existed above the cut area. I then
noticed . . . multiple stone
rings . . . directly in the cleared pipeline corridor.
Because we found significant stone features in just a short amount of time
during a casual reconnaissance, we concluded this visit so that we could return
with a survey team to conduct a full Class III cultural survey of the site.64

Mentz returned on August 30 through September 1 with his
company to conduct the Class III cultural survey65 “along the south side of
the DAPL corridor over a length of approximately two miles and a width of 150
feet.”66 His declaration reports
that within this area, they “found a significant number of stone features (82)
and archeological sites, including at least 27 burials.”67 Mentz further noted:

In addition to a large number of cairns, burials, and
stone rings, the survey found five sites of very great cultural and historic
significance. These stone feature sites are very rare to find and are located
within the corridor or adjacent to the corridor by as little as a foot.68

The remainder of Mentz’s statement describes
the significance of the cultural sites and burial grounds revealed by the Class
III cultural survey.69
With regards to one site in particular, Mentz concluded: “This is one of the
most significant archeological finds in North Dakota in many years.”70

Just two weeks before, on August 18, Dakota Access filed its
opposition to Standing Rock’s motion for preliminary injunction, asserting it
had fully complied with all federal environmental laws. The company claimed
that, despite extensive searching and investigation in, on, and around the path
of the proposed pipeline, “not a shred of evidence has been provided to this
court to suggest that this activity [construction of the pipeline] has harmed
or threatened a historic resource [such as a burial ground or sacred site].”71 Dakota Access was vehement,
prior to this point, that its proposed path for the pipeline in no way threated
burials or sacred sites.

Everything changed when Standing Rock filed Mentz’s
Supplemental Declaration on September 2, 2016. On that day, Dakota Access was
constructing its pipeline roughly twenty miles to the west of the property
identified in the Mentz Declaration, the Missouri River, and Highway 1806. Up
until that point, the company had not sent a construction crew to work on the
pipeline on a Saturday or Sunday—their work had taken place Monday through
Friday alone.

But less than twenty-four hours after the Tribe filed the
Mentz Declaration,72
at 6:00 a.m. on Saturday, September 3, 2016, Dakota Access moved its equipment
twenty miles to commence construction directly on top of the sacred sites and
burial grounds identified in the Mentz Declaration. Water Protectors—hearing
the sounds of construction just over a mile away—walked to the property,
peacefully demanding that the construction crew stop destroying the sacred
sites and burial grounds their bulldozers were desecrating.73

In response, Dakota Access utilized a private security force
to unleash a fleet of attack dogs. Dog bites and bloodshed ensued, and Democracy Now’s Amy Goodman caught some
of the violence on camera.74
Dakota Access knowingly violated numerous federal “environmental” laws on
September 3, 2016, when it intentionally destroyed the sacred sites and burial
grounds identified in the Mentz Declaration less than twenty-four hours after
it had been filed. To date, no state or federal authority has arrested or
indicted anyone for Dakota Access’ purposeful destruction of burial sites. Just
as federal environmental law left the Eastern Band Cherokee with no remedy for
the federal government’s destruction of our burial sites, federal environmental
law has left Standing Rock without an adequate remedy or mechanism to
effectuate the Tribe’s inherent sovereign right to protect its burial grounds
from destruction.

It is alarming that the environmental movement of the 1970s
secured laws that protect the habitat of a species like the snail darter, but
ultimately, fails to affirm the inherent sovereign right of Tribal Nations to
protect the lands that contain their sacred sites and the remains of the
relatives.

Conclusion

Over the course of American history, real change to law has
come about as a result of widespread dissent to a particular narrative. Law is,
after all, a framework of judgments created from values shaped by narratives.
For instance, consider the Supreme Court’s 2015 decision in Obergefell following decades of dissent
against the narrative that “American” values dictate a marriage be exclusively
between a man and a woman.75
The “law” that Justice Kennedy relied on to write his decision in Obergefell did not change; however, the
national narrative underlying the opposition to the outcome in his July 2015
opinion had.

Ultimately, laws will achieve very little if the narrative
that recounts their purpose faces little to no dissent. The fundamental problem
with the environmental movement in the 1970s is that it did not change the
nineteenth-century narrative that land constitutes an object to be colonially
conquered and commercially exploited—nor did the movement address the narrative
that anyone who fails to engage in such exploitation should lose their property
rights in the land. This explains why the best environmental statutes on the
books from the 1970s cannot solve the growing, increasingly catastrophic
environmental challenges we face today in climate change. Laws like NEPA, the
CWA, or the CAA were designed to effect piecemeal change; they never
represented the expression of dissent against the underlying narrative that
made widespread environmental destruction possible—if not fully protected—under
the law.

For many, the U.S. Army Corps of Engineers’ July 26, 2017,
decision to grant the Dakota Access pipeline its requested permits under the
CWA constitutes a clear violation of federal environmental law (specifically,
the National Environmental Protection Act’s requirement that an Environmental
Impact Statement be undertaken anytime a federal agency engages in a “major
federal action”76). But over a year ago, the
District Court denied Standing Rock’s Motion for a Preliminary Injunction, and
the D.C. Circuit subsequently denied their appeal.77 Consequently, construction
on the pipeline is now complete and oil is currently running.

It is true, however, that on June 14, 2017, the District
Court partially granted Standing Rock’s motion for summary judgment, remanding
the Corps’ determination not to
undertake an EIS to the agency, noting that “[a]lthough the Corps substantially
complied with NEPA in many areas, the Court agrees that it did not adequately
consider the impacts of an oil spill on fishing rights, hunting rights, or
environmental justice, or the degree to which the pipeline’s effects are likely
to be highly controversial.”78
The Court ultimately concluded: “Whether Dakota Access must cease pipeline
operations during that remand presents a separate question of the appropriate
remedy, which will be the subject of further briefing.”79 The parties have now
completed this briefing80
and on October 11, 2017, the District Court ordered that the remand of the
Corps’ July 27, 2016, EA and the easement granted to Dakota Access will be
without vacatur, meaning that the pipeline will continue in operation while the
Corps addresses the flaws in its environmental review identified by the Court’s
June 14, 2017, ruling.81

Although construction of the pipeline is now complete, the District
Court may order the flow of oil to stop. The grassroots movement at Standing
Rock, therefore, creates a new opportunity to revise, amend, or alter the laws
that stripped Tribal Nations of their inherent sovereignty—but such revisions
will only achieve their stated goals if the movement registers its dissent from
the underlying narrative that the Court first formulated in Johnson v M’Intosh’s Doctrine of
Discovery.

Perhaps there is hope. For the first time in American
history, significant numbers of non-Indian Americans have stood up and spoken
out to support a Tribal Nation fighting to protect its water, lands, sacred
sites, and burial grounds. Moving forward, those engaged in dissent designed to
protect the environment should ask four basic questions: (1) Whose ancestral
lands are we trying to protect? (2) What narratives gave rise to the laws or
legal frameworks used to justify the taking of those lands from this Tribal
Nation or Nations? (3) How can we voice dissent to those narratives and advocate
for the restoration of the inherent sovereign right of these Tribal Nations to
protect the lands we now seek as non-Indians to protect? and (4) In seeking to
address climate change, what lessons can we learn from the traditional laws and
values of the Tribal Nations who have lived on these lands since time
immemorial?

To be sure, Tribal Nations were never in need of a dissenting
“environmental” movement to tell us that we need to protect the environment.
Tribal Nations have been striving to respect and protect the land we live on
since time immemorial. However, since the Supreme Court’s adoption of the
Doctrine of Discovery, our indigenous “environmentalism” has been used as a
justification for erasing the inherent sovereignty of our Nations. Beginning with
the Supreme Court’s decision in Johnson,
our “uncivilized” refusal to exploit and abuse the land we live on has been
used repeatedly to strip our Nations of our inherent right to self-govern
ourselves, our lands, and our resources. The laws of Tribal Nations that
command respect for the Earth have, historically, been used as an excuse to
destroy the Nations who created them. How, then, can one truly be an
“environmentalist” without advocating for the elimination of the Doctrine of
Discovery and the restoration of tribal sovereignty?

Mary
Kathryn Nagle is a citizen of Cherokee Nation and a partner at Pipestem Law,
P.C., where her practice focuses on appellate advocacy on behalf of Tribal
Nations and their citizens in state, tribal, and federal courts. Special thanks
and gratitude to Dr. Duane King for his insight and helpful guidance regarding Sequoyah
v. TVA, and many thanks to Professor
Oliver Houck, whose incredible knowledge and command of environmental law
inspired and instructed the author to take the path along which she now finds
herself traveling.

THIS ESSAY IS PART OF A Collection

Since President Trump’s inauguration last January, communities across the country have mobilized to resist the administration’s policies. This Collection studies the meanings, motivations, and challenges of modern dissent. From modern environmentalism to government surveillance, these Essays explore the role of dissent in Ferguson, Standing Rock, the Senate, and sanctuary cities.

Id. at 588 (announcing the “Doctrine of Discovery” and declaring that “[c]onquest gives a title which the Courts of the conqueror cannot deny”).

7

21 U.S. (8 Wheat.) 543, 586 (1823) (“The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.”).

8

Id. at 681.

9

Id.

10

Id. (emphasis added).

11

Id.

12

See generally, Steven T. Newcomb, The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. M’Intosh, and Plenary Power, 20 N.Y.U. Rev. L. & Soc. Change 303, 313 (1993) (arguing that Johnson was a continuation of the Christian/heathen distinction that motivated European colonialism during the fifteenth and sixteenth centuries and still shapes, although rarely explicitly, Indian law today).

13

See id. at 337.

14

163 U.S. 547 (1896).

15

347 U.S. 483 (1954).

16

478 U.S. 186 (1986).

17

539 U.S. 558 (2003).

18

Richard J. Lazarus, The Making of Environmental Law 50, 52 (2004) (locating the origins of environmental law in local and state public health legislation, such as state water pollution controls).

19

See Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 Iowa L. Rev. 545, 567-69 (2007) (“Some courts in the late eighteenth and early nineteenth centuries used the doctrines of nuisance, trespass, and strict liability to enjoin profitable industrial activities in order to protect the environment and the rights of farmers and residents to be free from pollution . . . . at the dawn of the age of federal environmental regulation in the 1970s, there was ample precedent for state and federal common law to remain a force in the growing effort to address modern-day pollution. Nevertheless, the environmental-law story generally claims that there has been little need for common law after 1970 as a result of the powerful environmental regulatory state that is better suited to deal with today’scomplex environmental issues.”).

Jack Lewis, The Spirit of the First Earth Day (Jan/Feb 1990), http://archive.epa.gov/epa‌/aboutepa/spirit-first-earth-day.html [http://perma.cc/5N62-KPZ8] (“Public opinion polls indicate that a permanent change in national priorities followed Earth Day 1970. When polled in May 1971, 25 percent of the U.S. public declared protecting the environment to be an important goal a 2500 percent increase over 1969. That percentage has continued to grow, albeit more slowly, so it is fair to say that the ideals espoused on April 22, 1970, however naive and simplistic they were in many ways, have left an enduring legacy.”).

Id.; see also Sara Blankenship,
From the Halls of Congress to the Shores of the Little T: The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a Riverby Zygmunt J. B. Plater, 20 Animal L. 229, 231 (2013) (describing Hill as “the landmark environmental Supreme Court case”); Becky L. Jacobs, Foreword, 80 Tenn. L. Rev. 495, 495 (2013) (“Since its release in 1978, the ‘snail darter’ case [Hill] as it has come to be known has captivated an entire generation of environmental and natural resources law academics, practitioners, and students, and its influence persists some thirty-plus years later. Indeed, the case made the Top Ten list in a 2010 survey of lawyers’ perceptions of the most important cases in environmental law.”).